Information commissioner rules that university must release teaching materials

PublishedApril 16, 2009

On 24 July 2006, I sent a request to the University of Central Lancashire (UCLAN), under the Freedom of Information Act (2000) I asked to see the teaching materials that were used on their BSc Homeopathy course. The request was refused, citing the exemption under section 43(2) of the Act (Commercial Interests).

Two internal reviews were then held. These reviews upheld and the original refusal on the grounds of commercial interests, Section 43(3), and additionally claimed exemption under Section 21 “that is reasonably accessible to applicants by other means (upon the payment of a fee)….i.e. by enrolling on the course….”

In 21 October 2006 I appealed to the Office of the Information commisioner. (The”public authority” means UCLAN, and “the complainant” is me.)

“The complainant specifically asked the Commissioner to consider the application of section 43(2) to the course materials he had requested. The main thrust of his argument in this regard was that the public authority could not be considered a ‘commercial organisation’ for the purposes of the Act, and that the public authority had confused ‘commercial interests’ with ‘financial interests’. He however added that if the Commissioner decided section 43(2) was correctly engaged, then it was in the public interest to order disclosure.”

In May 2008, my appeal got to the top of the pile, and on 30th March 2009 a judgement was delivered. In all respects but one trivial one, the appeal was upheld. In future universities will not be able to refuse requests for teaching materials.

The following three exemptions were judged NOT to apply the requests for university teaching materials. I’ll quote some bits from the Decision Notice.

Section 21 provides that –

“Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.”

34. The public authority’s argument suggests that the requested information is reasonably accessible to the complainant if he enrols as a student on the course, and is therefore not accessible to him by any other means outside the Act unless he decides to make a total payment of £9,345 as a combined payment of three years tuition fees.

40. The Commissioner therefore finds that the public authority incorrectly applied the exemption contained at section 21 of the Act.

Section 42(2) provides that –

“Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).”

71. The Commissioner therefore finds that the section 43(2) was incorrectly engaged by virtue of the fact that the public authority’s ability to recruit students is not a commercial interest within the contemplation of section 43(2).

76. In addition to his finding on commercial interests the Commissioner finds that section 43(2) would in any case not be engaged as the likelihood of prejudice to the public authority’s ability to recruit students as a result of disclosure under the Act is no more than the likelihood of prejudice resulting from the availability of the course materials to students already enrolled on the course.

Section 36(2)C provides that –

“Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act-

(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs

98. For the reasons set out above, the Commissioner finds that section 36(2)(c) is not engaged as he does not accept the opinion of the qualified person is an objectively reasonable one. He does not find that disclosure would be likely to prejudice the effective conduct of public affairs.

Section 41(1) provides that –

“Information is exempt information if-

(a) it was obtained by the public authority from any other person (including another public authority), and

(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”

56. The Commissioner therefore finds the public authority correctly applied the exemption contained at section 41 to the case studies listed in Annex A. In the Commissioner’s view, even though the patients would not be identifiable if the case studies were disclosed, this disclosure would still be actionable by the patients.

The Decision

99. The Commissioner finds that section 41 is engaged

100. He however finds that the exemptions at sections 21, 43(2), and 36(2)(c) are not engaged.

101. The Commissioner therefore finds the public authority in breach of;

• Sections 1(1)(b) and 10(1), because it failed to disclose the remainder of the course materials (i.e. excluding the case studies) to the complainant within 20 working days.

• Section 17(1), because it did not specify in its refusal notice that it was also relying on sections 41 and 36(2)(c).

Steps required

103. The Commissioner requires the public authority to take the following steps to ensure compliance with the Act:

• Disclose all the course materials for the BSc (Hons) in Homeopathy apart from the case studies listed in Annex A of this Notice.

104. The public authority must take the steps required by this notice within 35 calendar days of the date of this notice.

22 Responses to Information commissioner rules that university must release teaching materials

Well done David. Despite the result being rather um academic now the principle you have obtained a ruling on is an important one. Keep up the good work, it’s a fight worth fighting. We can’t stop the woo merchants publishing their own journals but they shouldn’t be allowed to impersonate science more than that and issuing B.Sc. degrees for it was a perversion plain and simple.

Actually reminds me that a couple of weeks ago I saw a friend who used to work for UCLan in a fairly senior role. He told me that he had tried quite hard to obtain teaching materials for the B.Sc. Homeopathy course, but had been turned down flat.

Anyway, one does wonder if “embarrassment” were not a large part of the reason… as also for the course closure.

I am oddly reminded of a possibly apocryphal story that often gets told to explain why more US States with very powerful creationist evangelical Christian lobbies don’t try to pass “equal classroom time for creationism” type laws.

This story goes that every time the state senate in one or other Bible Belt state is considering whether to ratify such a law, the word goes round:

“Hell, we know all this evolution stuff is Godless blasphemy, but if we pass this here law, you just know what the pointy heads on TV and in the New York Times and in Washington will say. They’ll say we’re the dumbest hick state in the whole USA, and now we’ve passed a law to prove it”

So sometimes the prospect, let alone reality, of public embarrassment and mockery can have salutory effects.

Dr Aust. I suspect you are right. UCLAN has ambitions to become a medical school and I suspect they they think that the quackery degrees might reduce their chances. Or so, at least, I suggested when I gave evidence to them.

UCLAN is part of the Cumbria and Lancashire Medical and Dental Consortium who are delivering undergraduate medical teaching (mainly based out of Lancaster). The other partners in the consortium are Lancaster Uni, Liverpool Uni and the University of Cumbria.

Although this is not a standalone ‘medical school’ yet and their involvement with undergraduates is currently limited they very much have their foot in the door.

Yes.. as I understand it, currently Lancaster is operating as a kind of “satellite” of the Liverpool Medical School (possibly with some undergrad lectures still “podcasted” from Liverpool..??). But an obvious development (especially if they are planning to expand) would be to go to a “standalone” Cumbria and Lancs medical/dental school, centred on Lancaster (and perhaps Preston) and breaking the link w Liverpool.

Anyway, in a recessionary period, mainstream medical / health science / para-medical degrees are one of the more “resilient” bits of the degree market. So I can believe UCLan would be extremely keen to get into undergrad medical teaching, either in a full-scale coop venture with Lancaster or even on their own. UClan have new-ish Schools of Dentistry and Pharmacy training dentistry and pharmacy undergrads, so medicine is the only one they are lacking.

BTW, currently the Royal Preston Hospital is a “clinical yrs satellite centre” of the Manchester Medical School, and runs yrs 3-5 of the Manchester course for about 100 students in each yr who are “based” in Preston.

Yes, you’ve pretty much got it. The difference to Derby is that it is the full 5 year course at Lancaster (no grad course).

I can’t see much hope of a standalone UCLan med school – especially with Manchester having such a strong presence in Preston. As I am sure you know we have already had a few skirmishes in a mild turf war over student placements around that border area.

Still, as you say, I take your point re ‘resilient’ degrees and UCLan are in the consortium so could well have ambitions to have med students there in some greatly expanded capacity. One might assume that a cull of quackery would only help.

Good grief, I thought I was having a hard time after 2½ years with my FOI requests to DoH and MHRA. But 3 years! So very well done – the house of cards is crumbling. Actually I do think the section 41 exemption is pretty specious. Did the case study patients consent to disclosure to the students, and no doubt the students’ families, flatmates, sexual partners and anyone else they might blab to? As we all know case studies are the only evidence homeopaths really believe so not surprising the materials were underpinned by them.

David. Are you being smart? I understand your desire to expose scientific charlatanism, soft science, Studies Studies and the whole gamut of therapies based on anecdotal evidence. Very laudable. However, the Law of Unintended Consequences will now kick in. As a colleague of yours at UCL, this means that the teaching material on our MSc will be available to the public FOR NOTHING. Even worse, it will be available to our competitors at King’s!!! Ruin and disgrace may face us.
Perhaps by straining at a gnat you’ve swallowed a camel.
Collegial regards Georgeboy